Appeal from the Circuit Court of Tazewell county; the Hon.
JOHN T. CULBERTSON, Jr., Judge, presiding. Reversed.
JUDGE CARROLL DELIVERED THE OPINION OF THE COURT.
Rehearing denied September 11, 1959.
These actions were originally brought in a justice of the peace court to recover certain monthly maintenance charges allegedly owed by defendants as lot owners in a subdivision, known as Marquette Heights, under covenants running with the land as set forth in a Declaration of Restrictions executed by the subdividers of said subdivision.
In each case judgment for plaintiff was rendered in the justice court and defendants perfected an appeal to the Circuit Court of Tazewell County. The causes were consolidated in the Circuit Court and a trial de novo resulted in the entry of judgment against defendants Durham in the amount of $30 and costs and against defendants Vrell in the amount of $36 and costs. From such judgments the defendants have prosecuted this appeal.
The facts do not appear to be in dispute and are substantially that in 1948 Brynes-Peoria Community, Inc. owned a tract of land in a unincorporated area of Tazewell County which it was then platting as a subdivision and which was designated on the plats thereof as Marquette Heights; that on July 29, 1948, said Byrnes-Peoria, Inc. (referred to herein as the Company) filed with the Recorder of Deeds of Tazewell County a Declaration of Restrictions imposing upon and charging the lots in said subdivision with certain restrictions, conditions and charges; that said Declaration provides that as soon as there are 100 single family residences in Marquette Heights occupied by home owners, the Company, its successors or assigns, shall select 4 home purchasers to serve along with the Company on a five membership community committee to perform the duties and functions required of such committee under the provisions of the said Declaration; and that until the formation of said committee, the Company alone shall constitute such committee. Subdivision IX of the Declaration imposes certain maintenance charges on the lots in the subdivision and reads as follows:
"Sub-Division IX. Maintenance Charges. All the land included and shown on Parcels I to IV inclusive, except Block 18-B, Parcel III, designated Community Center, and improved by residential, non-commercial or commercial buildings whether owned by the Company or by others, shall be subject to an annual maintenance charge at the rate of $2.50 per month or $30.00 per year for each lot improved by a single family dwelling; 3 per year per square foot of area for so much of the land in each block as is devoted to and improved by multi-family dwellings, apartments, or commercial structures; said charge shall be for each calendar year commencing with 1949 for the purpose of creating a fund to be known as the Maintenance Fund to be paid to Committee annually in advance of the first day of January of each year by the respective owners of the improved land on which buildings have been completed. Such annual charge may be adjusted from year to year by the Committee in its sole and absolute judgment and discretion as the needs of the property may require but in no event may such charge be raised by the Committee more than 20% above the rates set forth herein without the approval of a majority of the owners of the improved lots.
"The Committee agrees to apply the total fund from said charges so far as adequate and sufficient towards the payment of the maintenance expenses incurred for the following purposes, but not limited to the following: (1) lighting, improving, and maintaining streets and parks; (2) operation and maintenance of storm-water drains; (3) collecting and disposing of garbage, ashes and rubbish; (4) employing policemen and watchmen and fire protection; (5) for caring for vacant and untended land including removing grass and weeds therefrom and doing anything necessary or desirable in the opinion of the Committee to keep the property neat; (6) for the expenses incident to the examination of plans and enforcement of these restrictions; (7) for taxes and assessments if any, that may be levied by any public authority upon the Community Center, Block 18-B, or any streets, parks or other common areas.
"The Committee need not duplicate and need not obligate itself to provide any of the services mentioned above as may or can be provided by some public agency.
"The annual charge for maintenance shall be liens or encumbrances on the land and acceptance of each of the several deeds shall be construed to be a covenant to pay said charges. The Committee shall have the right to prosecute actions or suits necessary for the collection of such charges and abate any violations of the covenants. Such covenants shall run with the land and be enforceable by the Company and by any owners or occupants."
It is the charges specified in said Subdivision IX which are involved in these actions.
The said Declaration also contains the following provision:
"Any or all of the rights, powers, titles, easements and estates reserved and given to the Company or Committee in this deed may be assigned to any one or more corporations or associations that will agree to assume said rights, powers, duties and obligations and carry out and perform the same. Any such assignment or transfer shall be made by appropriate instrument in writing in which the assignee or transferee shall join for the purposes of evidencing its consent to the acceptance of such rights and powers; and such assignee or transferee shall thereupon have the same rights and powers and be subject to the same obligations and duties as are herein given to be assumed by the Company, the Company thereupon being released therefrom."
One of the Committee's duties was that of passing upon all plans and specifications for structures erected in the subdivision and no building could be constructed or altered without the approval of the Committee. Other duties included fixing setback lines and to approve, specify and limit the non-residential or Community uses to which buildings erected on land reserved on the plat for such uses might be put and to execute deeds or other instruments evidencing its decisions in such cases.
On January 14, 1957, Marquette Heights Community Committee executed an assignment of the Declaration to the City of Marquette Heights which had been incorporated in June of 1956 and which embraced the area constituting Marquette Heights Subdivision. The assignor in said assignment was the Community Committee appointed by Draper & Cramer, Inc., which organization had apparently been employed as an administrator by the subdividers. The connection of the latter concern with the subdivision management is not made clear. There appears in the record a certificate of dissolution showing that Byrnes-Peoria Community, Inc. was dissolved on November 6, 1952. In 1956 there were about 480 homes in the subdivision but the record fails to show the selection of a Community Committee as provided by the Declaration. After the assignment to it, the City took over the collection of the maintenance charges specified in Subdivision IX ...